Opinion
No. 92SA148 No. 92SA149
Decided November 9, 1992.
Original Proceeding AND Appeal from the District Court, Gilpin County Honorable Kenneth E. Barnhill, Judge
Donald E. Mielke, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, for Plaintiff-Appellant.
Schoenwald Lewis, P.C., Forrest W. Lewis, for Marvin Dennis, Jr.
David F. Vela, Public Defender, Terri L. Brake, Chief Deputy Public Defender, for Joseph Nick Aguayo.
The People appeal a ruling of the Gilpin County District Court precluding the death penalty from consideration at the trial of the defendants, Joseph Nick Aguayo and Marvin Dennis, Jr. The trial court ruled that sections 16-11-801 and -802, 8A C.R.S. (1992 Supp.), could not be applied to subject defendants to the death penalty because such application would violate the ex post facto clause of the Colorado Constitution. Additionally, the court held that the pre-1988 death penalty statute was not revived as a result of our holding in People v. Young, 814 P.2d 834 (Colo. 1991), where we found the 1988 version of the death penalty sentencing statute unconstitutional (§ 16-11-103, 8A C.R.S. (1988 Supp.) ("1988 statute")). We affirm.
The People filed an original proceeding pursuant to C.A.R. 21 and appealed pursuant to § 16-12-102(1), as amended by House Bill 91S2-1008, ch. 5, sec. 1, 1991 Colo. 2d Ex. Sess. Laws 15. By order dated April 9, 1992, we joined these two cases and stayed the proceedings in the district court.
As we stated in People v. District Court (Thomas), 834 P.2d 181, 184 n. 1 (Colo. 1992): "Since the pre-1988, the 1988, and the 1991 death penalty sentencing statutes are all codified at section 16-11-103 (the 1988 and 1991 statutes really only constituting amendments to the pre-1988 statute), it is important to differentiate these provisions by providing them with different labels. Because an understanding of the evolving legislation is critical to an understanding of this opinion, the following synopsis is provided at the outset for reference: `1. "Pre-1988 statute" refers to section 16-11-103, 8A C.R.S. (1986), which set forth a four step process for jury deliberations in determining whether to impose a sentence of life imprisonment or a sentence of death. `2. "1988 statute" also refers to section 16-11-103, 8A C.R.S. (1988 Supp.), but the reference is to the death penalty sentencing statute as amended by Senate Bill 78 in 1988. Section 3 of this Bill eliminated the fourth step in the jury deliberation process by repealing the provision in the pre-1988 statute which set forth this step. `3. "House Bill 1001" also refers to section 16-11-103, [8A C.R.S. (1992 Supp.)] and is the label for the death penalty sentencing statute as amended in September 1991. . . . This provision again reenacts the fourth step and is applicable to class one felony offenses occurring on or after September 20, 1991. `4. "House Bill 1038" refers to two new statutes enacted in October, 1991 — sections 16-11-801 and 16-11-802.' "A. Section 16-11-801 states that the pre 1988 statute is reenacted to the extent it was not revitalized upon a finding that the 1988 statute was unconstitutional. "B. Section 16-11-802 is yet another death penalty sentencing statute which is essentially identical to the pre-1988 statute (with certain changes as discussed in the text) and is applicable to class one felonies which occur from July 1, 1988 until September 19, 1991."
I
The order of relevant events plays an important role in our decision. Because of their significance we begin with a chronology of the death penalty sentencing statutory amendments as related to the occurrences in this case.
Prior to 1988, a jury was required to follow a four-step sentencing procedure in determining whether to impose a sentence of life imprisonment or death. See § 16-11-103, 8A C.R.S. (1986) ("pre-1988 statute"). In 1988, this statute was amended by Senate Bill 78 (1988 statute) to consolidate two of the four steps. The fourth step was thus eliminated, and Senate Bill 78 specifically repealed section 16-11-103(2)(a)(III), the source of the fourth step. On July 9, 1991, we announced our decision in People v. Young, 814 P.2d 834 (Colo. 1991), finding that the death penalty sentencing statute as amended in 1988 was unconstitutional because it eliminated the fourth step of the jury's deliberation process in determining whether to impose a sentence of life imprisonment or death upon conviction for a class 1 felony. Approximately one month later, defendants were charged with several felonies, including two counts of first degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, as a result of the death of Rex Hayden Miller on July 30, 1991. Both defendants plead not guilty.
In People v. Tenneson, 788 P.2d 786, 789 (Colo. 1990), we outlined the four steps.
In response to this court's decision in Young, but after the commission of the charged offenses, the General Assembly in House Bill 91S2-1001, repealed and reenacted with amendments the death penalty sentencing statute. § 16-11-103, 8A C.R.S. (1992 Supp.) (approved and effective September 20, 1991). House Bill 91S2-1001, by reenacting the pre-1988 version of the death penalty statute, § 16-11-103, 8A C.R.S. (1986) (the pre-1988 statute), again made the death penalty available as a sentence for persons convicted of class 1 felony offenses committed on or after September 20, 1991.
The People then filed a "Notice of Intent to Qualify the Trial Jury to Impose a Sentence of Death Pursuant to C.R.S. 16-11-103 (1991 as amended), House Bill 91S2-1001." The notice was filed forty-one days before the scheduled trial, but the court ruled that the People had not provided the defendants with adequate notice that this was a death penalty case, and denied the request to qualify the jury to impose the death penalty. The People appealed this ruling, and in People v. District Court, 825 P.2d 1000 (Colo. 1992), we found that the defendants received adequate notice of the People's intent to seek the death penalty and held that the district court erred in precluding the People from seeking the death penalty against these defendants. In District Court we addressed only the limited issue presented to us: "whether the trial court abused its discretion in denying the People the opportunity to seek the death penalty under the circumstances." Id. at 1002. See People's Pet. for Relief Pursuant to C.A.R. 21, at 9; Amended Order to Show Cause (Nov. 7, 1990). Those circumstances did not include an examination of whether H.B. 91S2-1038 violated the ex post facto prohibition of either the Colorado or the United States Constitution. In the Answer to Amended Order to Show Cause, defendants stated that H.B. 91S2-1038 was not before this court on appeal. The trial court's denial of the request to "death-qualify" the jury was based solely on the lack of adequate notice to the defendants. In fact, H.B. 91S2-1038 was approved the day of the hearing to death-qualify the jury. The only possible basis for the trial court to have addressed the applicability of H.B. 91S2-1038 would have been on the motion to reconsider the denial of the request to death-qualify the jury, which the trial court denied without comment. As such, it should not be construed as the ratio decidendi of the District Court opinion.
On October 11, 1991, with the express intent that "there be no hiatus in the imposition of the death penalty as a sentence for the commission of a class 1 felony in the state of Colorado as a result of the holding of the Colorado supreme court in People v. Young," House Bill 91S2-1038 was enacted, creating two new statutes. Ch. 6, sec. 1, §§ 16-11-801 and -802, 1991 Colo. 2d Ex. Sess. Laws 16 (codified as §§ 16-11-801 and -802, 8A C.R.S. (1992 Supp.)). In essence, section 16-11-801 provides that to the extent that the pre-1988 statute was not "automatically revitalized by operation of law," section 16-11-802 was applicable to offenses committed on or after July 1, 1988, and before September 20, 1991. Section 16-11-802 provides for a four-step jury deliberation process, and is almost identical to the pre-1988 statute.
Section 16-11-802 varies from the 1988 statute in that (1) it includes a four-step jury deliberation process, and (2) it does not incorporate two amendments made to the 1988 statute as discussed in Thomas. See People v. District Court (Thomas), 834 P.2d 181, 185-88 (Colo. 1992) (reviewing recent amendments to the death penalty sentencing statute).
Both defendants filed motions to preclude the death penalty from consideration. The trial court granted defendants' motions, rejecting the People's argument that the pre-1988 statute was revived as a result of the declaration in Young that the 1988 statute was unconstitutional. The court also ruled that application of section 16-11-802, as enacted by House Bill 91S2-1038, would violate the ex post facto clause of the Colorado Constitution art. II, § 11. This appeal followed.
II
Recently, in People v. District Court (Thomas), 834 P.2d 181 (Colo. 1992) (hereinafter Thomas), we set forth a detailed history of the death penalty sentencing statute and the relevant changes to that statute. A similar argument concerning the issue of revival of the pre-1988 statute was raised in Thomas. In light of our opinion in Thomas, and for the reasons stated therein, the district court properly determined that the People could not seek the death penalty against Aguayo and Dennis under the pre-1988 statute and we affirm the trial court's ruling on this issue.
III
The People urge that sections 16-11-801 and -802 (collectively referred to as "House Bill 1038") can be retroactively applied to the defendants here without offending either federal or state ex post facto protections. In Thomas, we set forth the standard under which legislation is to be examined to determine an ex post facto violation. As in Thomas, we examine House Bill 1038 "under the standard that the ex post facto clause is violated when a statute punishes as a crime conduct which was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed." Thomas, 834 P.2d at 199 (plurality opinion of Rovira, C.J.) (footnote omitted). In Thomas, the law annexed to the crime was a sentencing statute later found to be constitutionally infirm. Because the subsequent statute did not involve a more onerous punishment than was offered by the judicially invalidated statute, the subsequent statute could be retroactively applied. Thus, we held that application of House Bill 1038 to a defendant accused of committing a class 1 felony before the decision in Young did not violate either the federal or state proscriptions against ex post facto laws.
Here, however, the offenses with which the defendants are charged occurred after our decision in Young. As a result of our decision in Young, at the time defendants allegedly committed these class 1 felony offenses there was no valid death penalty sentencing statute in effect. Applying sections 16-11-801 and -802 retroactively so as to impose a death penalty would, therefore, inflict a greater punishment than the law annexed to the crime when committed, thus violating both the federal and state constitutional proscriptions against ex post facto laws.
As this court stated in Thomas: "After Young there was no valid jury process for determining whether to impose a death sentence. Once the death option is removed, then the only authorized penalty for conviction of a class 1 felony is life imprisonment." Thomas, 834 P.2d at 191 (plurality opinion of Rovira, C.J.).
However, the People argue that section 18-1-105(1)(a)(IV), 8B C.R.S. (1992 Supp.) (class 1 felony punishable by minimum sentence of life in prison or maximum sentence of death), was an operative fact placing the defendants on notice that death was a possible penalty for first degree murder. This argument, however, ignores the existence of section 18-1-105(4) which provides:
"(4) A person who has been convicted of a class 1 felony shall be punished by life imprisonment unless the proceeding held to determine sentence according to the procedure set forth in section 16-11-103, C.R.S., results in a verdict which requires imposition of the death penalty, in which event such person shall be sentenced to death."
§ 18-1-105(4), 8B C.R.S. (1992 Supp.) (emphasis added). By its plain language, section 18-1-105 contains a mandate that in the absence of sentencing procedures in accordance with section 16-11-103, the only penalty for a class 1 felony is life imprisonment. In Young, we found the death penalty sentencing statute contained in the 1988 statute, § 16-11-103, 8A C.R.S. (1988 Supp.), to be unconstitutional. Young, 814 P.2d 834, 846-47 (1992) (plurality opinion of Lohr, J.). Thus, contrary to the People's assertion, at the time of the alleged offenses section 18-1-105 gave notice that the death penalty would not be imposed for class 1 felonies. At the time of the offenses, the only possible punishment for class 1 felonies was life imprisonment.
Accordingly, we affirm the trial court's ruling that the prosecution cannot seek the death penalty against the defendants in this case.
JUSTICE LOHR concurs in Parts I and II and in the Judgment of the Court. JUSTICE QUINN and JUSTICE KIRSHBAUM join.
JUSTICE ERICKSON specially concurs.
JUSTICE VOLLACK dissents.